Smt. Dhanyakumari P Reddy vs Smt. Gayathri H Rao
2022 Latest Caselaw 68 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 4TH DAY OF JANUARY 2022

                              BEFORE

     THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

          REGULAR FIRST APPEAL No.1473 OF 2018

BETWEEN:

Smt. Dhanyakumari P. Reddy,
W/o. Late Padmanabha Reddy,
Aged about 68 years, now
Residing at Shahu Colony,
Lane No.6, Karve Nagar, Pune.411052
                                               ...Appellant
(By Smt. Geetha Menon, Advocate)

AND:

1.     Smt. Gayathri H. Rao,
       W/o. T. Hanmanth Rao,
       Aged about 60 years.
       R/at: No.219, 8th D Main,
       1st Block, HRBR Kalyan Nagar,
       Bangalore - 560 043
       Represented by her GPA holder
       Sri. T. Hanumantha Rao.

2.     The Commissioner,
       Bruhath Bengaluru Mahanagara Palike,
       Bangalore- 560 002.

3.    The Assistant Revenue Officer,
      BBMP, Banaswadi Sub-Division
      Bangalore- 560 043.                         ...Respondents
(By Sri.M.S. Mohan, Advocate for C/R-1;
Sri.K.N. Puttegowda, Advocate for R-2 & R-3)
                                ****
                                                2                      RFA.No.1473/2018


      This R.F.A. is filed under Section 96 read with Order 41 Rule 1 of
the Code of Civil Procedure, 1908, praying to call for the records and
to      set    aside      the     judgment     and     decree      dated
21-07-2018 passed in O.S.No.684/2010 on the file of the
35th Additional City Civil and Sessions judge, Bangalore, in the interest
of justice and equity.

     This Appeal having been heard through Physical Hearing/Video
Conferencing Hearing and reserved on 20.12.2021 at Principal Bench,
Bengaluru and coming on for pronouncement of Judgment before
Dharwad Bench, this day, the Court delivered the following:

                                        JUDGMENT

This is the 1st defendant's appeal. The present respondent No.1,

as a plaintiff, had filed a suit against the present appellant and present

respondent Nos.2 and 3 arraying them as defendant Nos.1, 2 and 3

respectively in O.S.No.684/2010, in the Court of learned

XXXV Addl.City Civil & Sessions Judge, Bengaluru (CCH-36),

(hereinafter for brevity referred to as `trial Court'), for the relief of

declaration of the title of the plaintiff over the suit schedule immovable

property and for cancellation of the Sale Deed dated 10.11.1989 said

to have been executed in favour of defendant No.1 and for possession

of the suit schedule property.

2. The summary of the plaint averments is that one

Sri Sampangi Reddy was granted a land by the Land Tribunal,

Bengaluru South Taluk, vide its order dated 11.06.1981 in Survey

No.5/B of Dodda Banasawadi, K.R.Pura Hobli, Bengaluru South Taluk,

measuring 1 acre 4 guntas. The granted land was prohibited for its

alienation for a period of fifteen (15) years from the date of grant,

which term has expired on 10.05.1996. The said grantee

Sri Sampangi Reddy died on the date 10.05.1990. Smt.Muniyamma,

the legally wedded wife of late Sri Sampangi Reddy died on

10.01.2009. During his lifetime, said Sri Sampangi Reddy had not

conferred any right to his legal heirs to alienate the granted land to

anybody, much less, to the defendants.

The plaintiff is the sole and absolute owner in possession of the

suit schedule `A' and `B' properties, which are two bits of land stated

to be bearing old Site No. 32 and new Site No.31, measuring 3,380

sq. ft and 1,764 sq. ft. respectively, in total measuring 5,144 sq. ft.

located at Sampangi Layout, 10th `B' Main, Mukuntamma Nagar,

Dodda Banaswadi, K.R.Pura Hobli, erstwhile Bengaluru South Taluk

and presently in Bengaluru East Taluk. The plaintiff has purchased the

said property under registered Sale Deed dated 09.08.2004, executed

by the legal representatives of late Sri Sampangi Reddy. After

purchase of the suit property, the plaintiff got electricity power

sanctioned to the suit property and also paid substantial amount of

`57,200/- towards Katha fee to the Bruhat Bengaluru Mahanagara

Palike (BBMP). However, the defendant No.1 raised an objection for

making the Katha of the property in favour of the plaintiff, which was

communicated to her by the BBMP. Till then, the plaintiff was not

aware that defendant No.1 also claims her title over the property

under alleged Sale Deed. The defendant No.1 claims her title over the

property under a Sale Deed dated 10.11.1989 said to have been

executed by the legal heirs of late Sri Sampangi Reddy. The legal

heirs of Sri Sampangi Reddy by name Smt.Muniyamma, Sri S.Sathish,

Sri A.Raja and Sri A.Manjunath have admitted the Sale Deed in favour

of the plaintiff.

The defendant No.1 had filed a suit in O.S.No.6482/2004, before

the learned XVIII Addl.City Civil Judge, Bengaluru, for the relief of

permanent injunction. Smt.Muniyamma and the other legal

representatives of Sri Sampangi Reddy and the present plaintiff have

filed their written statement in the said suit. However, the said suit

came to be decreed on the date 17.12.2008. Aggrieved by the same,

the present plaintiff preferred an appeal before this Court in

R.F.A.No.287/2009, which is pending as on the date of the present

suit. The fence put to the suit schedule property has been damaged

by defendant No.1 and had demolished the compound wall on

27.08.2004. This made the plaintiff to institute the suit.

3. In response to the summons served upon them, the

1st defendant filed her written statement denying all the plaint

averments. However, admitted that she has a registered Sale Deed

dated 10.11.1989 executed by Smt.Muniyamma and her family

members in her favour. She stated that the sites were formed out of

the land belonging to Sri Sampangi Reddy and her vendors of the

property are the legal heirs of Sri Sampangi Reddy, who had formed a

layout called `Muniyamma Layout' and had sold sites to different

persons, including the defendant No.1. She specifically contended

that the suit of the plaintiff is barred by limitation and also hit by the

principles of res judicata since the defendant No.1 had also filed a suit

in O.S.No.6482/2004 and the same was decreed in her favour. She

contended that she being the owner in possession of the property,

since was disturbed in her possession by the present plaintiff, she

instituted a suit for injunction in O.S.No.6482/2004 on the file of the

learned XVIII Addl.City Civil Judge, Bengaluru, against her former

vendors and the vendors of the plaintiff and also the plaintiff, wherein

the present plaintiff was defendant No.5 in the said suit. After contest,

the said O.S.No.6482/2004 came to be decreed on the date

17.12.2008. As such, she has been in possession of the property as

the owner of the said property.

4. Based on the pleadings of the parties, the trial Court framed

the following issues :

1) Does the plaintiff prove that, she is the absolute owner of plaint A and B schedule properties as contended in the plaint?

2) Does the plaintiff prove that, the sale deed executed on 10-11-1989 with respect to the suit schedule properties in favour of the defendant is null and void for the reasons stated in the plaint and same is liable to be cancelled?

3) Does the plaintiff prove that, she is entitled for possession of plaint A and B-schedule properties from the defendant?

4) Does the plaintiff prove that, suit is properly valued and court fee paid on the same is sufficient?

5) Does the plaintiff prove that, suit is in time?

6) Does the defendant prove that, the present suit is hit by the Prl. Of Res-judicata for having final adjudication of O.S.No.6482/2004 by the competent Civil Court as contended in the written statement?

7) Does the plaintiff prove that, there is a cause of action for her to file this suit against the defendant?

8) What order or decree?

5. On behalf of the plaintiff, one Sri T.Hanmanth Rao, said to be

the husband of plaintiff and also the Power of Attorney Holder for the

plaintiff, was examined as PW-1 and documents from Exs.P-1 to P-23

were marked. The defendant No.1 got herself examined as DW-1

and got marked documents from Exs.D-1 to D-30.

After recording the evidence and hearing both side, the trial

Court by its judgment dated 21.07.2018, while answering issues

Nos.1, 2, 3, 4, 5 and 7 in the affirmative and issue No.6 in the

negative, decreed the suit of the plaintiff. Aggrieved by the same, the

defendant No.1 in the trial Court has preferred the present appeal.

6. In response to the notice served upon them, the respondents

are appearing through their counsel.

7. Records from the trial Court are called for and the same are

placed before the Court.

8. For the sake of convenience, the parties would be referred to

as per their rank before the trial Court.

11. Heard the arguments of learned counsel from both side and

perused the materials placed before this Court, including the impugned

judgment and the trial Court record.

12. The points that arise for my consideration are,

1. Whether the suit of the plaintiff in O.S.No.684/2010 is barred by limitation?

2. Whether the defendant No.1 has proved that the suit is hit by the principles of constructive res judicata?

3. Whether the plaintiff proves that she is the absolute owner of the plaint schedule `A' and `B' properties?

4. Whether the plaintiff proves that the registered Sale Deed dated 10.11.1989 in favour of defendant No.1 is null and void?

5. Whether the plaintiff is entitled for possession of plaint schedule `A' and `B' properties from the defendant No.1?

6. Whether the judgment and decree under the appeal warrants any interference at the hands of this Court?

13. The first point of argument of the learned counsel for the

appellant was that, the suit is barred by limitation. She submitted that

the scrutiny report of the Trial Court in O.S.No.684/2010 shows that

along with the plaint, the plaintiff had also filed interlocutory

application- I.A.No.1, under Section 5 of the Limitation Act, 1963 read

with Section 151 of the CPC, seeking condonation of delay in filing the

suit, as such, the suit is barred by limitation.

Learned counsel further submitted that the plaintiff (respondent

No.1 herein) was aware of the Sale Deed in favour of the defendant

No.1 (appellant herein) in the year 2004 itself, as such, the suit filed in

the year 2010 is hopelessly barred by limitation. She further

contended that the plaintiff in para-12 of the plaint has stated that,

upto the date, the defendant filed her objection to stall the effect of

the khata in the name of the plaintiff, the plaintiff had no knowledge

about the Sale Deed possessed by the defendant. In the very same

plaint, originally, the cause of action was shown as having arisen on

26-08-2004. Later, after amending the plaint, the cause of action was

shown to have arisen for filing the present suit on Dt. 17-12-2008 as

per the original suit in O.S.No.6482/2004. However, no evidence is

led to the effect that, the cause of action has arisen on Dt.17-12-2008.

Learned counsel for the appellant further submitted that PW-1,

in his cross-examination, has denied that, he knew the existence of a

Sale Deed in favour of the defendant in the year 2004. Therefore, it is

contrary to para-12 of the plaint regarding the cause of action.

Learned counsel for the appellant further contended that the

plaintiff's prayer for the relief of possession is consequential and

depending upon the finding upon the prayer for the relief of

declaration of her title as well the cancellation of the title deed in

favour of defendant No.1. If the main relief of declaration and

cancellation is refused, consequently, the possession also goes.

However, the Trial Court erroneously held that since the limitation for

the relief of possession is twelve years under Article 65 of the

Limitation Act, the suit filed was within limitation.

The learned counsel for the appellant further contended that in

para-10 of the plaint, the plaintiff has stated that the BBMP could not

change the khatha in the name of the plaintiff on account of an

objection filed by the defendant. Though the plaintiff submitted her

counter objection, the BBMP issued an endorsement dated 26-08-2004

which is at Ex.P-8. As such also, it is clear that as in the year 2004

itself, the plaintiff was aware of the Sale Deed standing in favour of

the defendant No.1, however, the suit which ought to have been filed

within three years was filed belatedly in the year 2010, as such, the

suit is barred by limitation.

14. Learned counsel for respondent No.1 in his argument

submitted that the suit for declaration and possession has been filed

by the plaintiff within the period of limitation from the date when the

plaintiff came to know that defendant No.1 was claiming her title over

the suit schedule property and thus, denying the title of the plaintiff as

against the property. As such, the suit is within the period of

limitation.

15. A perusal of the Trial Court records would go to show that in

page.1 of the Trial Court records, which is the scrutiny report of the

office of the Trial Court, which is a computerised printout shows that

along with the plaint, the plaintiff had also filed an interlocutory

application - I.A.No.1 under Section 5 of the Limitation Act, seeking

condonation of delay in filing the suit. However, there is nothing

mentioned with respect to the said interlocutory application anywhere

in the order sheet there afterwards.

A perusal of the Trial Court record also does not show that the

defendants have filed their objections to the said alleged I.A.No.1. So

also the Trial Court record does not show the said I.A.No.1 said to

have been filed under Section 5 of the Limitation Act. There is no

whisper about the plaintiff filing an I.A.No.1 under Section 5 of the

Limitation Act, while filing the suit, in the impugned judgment.

16. Undisputedly, if there is a delay in filing the original suit, the

same is not amenable for its condonation under Section 5 of the

Limitation Act, as such, in the absence of any mentioning about the

said I.A. anywhere in the Trial Court Records, except page No.1 of the

Trial Court record, it can only be inferred that the scrutiny report being

in a pro-forma, the office of the Trial Court must have mistakenly

retained the mentioning of the said I.A.No.1 under Section 5 of the

Limitation Act as the one filed by the plaintiff along with the plaint.

Therefore, the argument of the learned counsel for the appellant in

this regard is not acceptable.

17. The argument of the learned counsel for the appellant that

the plaint averment in para-10 which mentions that the BBMP could

not change the khatha in the name of the plaintiff on account of an

objection filed by the defendant itself would go to show that, the

plaintiff was aware of the Sale Deed in favour of defendant No.1 as

early as in August 2004, is also not acceptable, for the reason that,

the endorsement given by the BBMP is at Ex.P-8 and dated 26-08-

2004. The said document shows that the BBMP has intimated the

plaintiff that due to the objection raised by Smt. Dhanyakumari

(defendant No.1), there is no opportunity for BBMP to register the

khatha in the name of the plaintiff. By the said document, it cannot

be shown as to what was the objection raised by the defendant No.1

(Smt. Dhanyakumari). Bringing the same to the notice of BBMP, the

plaintiff has written a letter to the BBMP without any delay, on Dt. 31-

08-2004 which is at Ex.P-9. In the said letter, the plaintiff has

specifically stated that she has not given the copies of the objection

filed by Smt. DhanyaKumari P. Reddy (defendant No.1). Thus, she

has made it clear that she was not aware of what objection said Smt.

Dhanyaumari (defendant No.1) had raised before the BBMP. As such,

it cannot be presumed that the present plaintiff was aware of the

contents of the objections raised by the defendant No.1 herein before

the BBMP and that her alleged possession of Sale Deed with respect to

the same property at an earlier date.

18. The argument of the learned counsel for the defendant No.1/

plaintiff that regarding the arising of the cause of action on Dt. 17-12-

2008 though pleaded by the plaintiff has not been proved by leading

the evidence, is also not acceptable, for the reason that, by

amendment of the plaint, the plaintiff has shown in the plaint at para-

21 that cause of action has arisen to file the suit on 17-12-2008 as per

O.S.No.6482/2004 filed by the defendant and it is continuing on the

subsequent dates. Admittedly, the said amendment was carried out by

the plaintiff after closure of the leading of the evidence from both side

in the suit and when the matter was said to be at the stage of

arguments. However, that cannot be a reason for not getting the

case re-opened. Still what cannot be ignored is that, the defendant

No.1 has not filed her additional Written Statement to the said

amendment, denying the plaint averments, regarding the arising of

the cause of action in December 2008.

19. The learned counsel for the defendant No.1 (appellant

herein) drawing the attention to a portion of the document at Ex.D-27,

which is the evidence of PW-1 (GPA holder of defendant No.1 herein)

in O.S.No.6482/2004 stated that in the said evidence itself, the

plaintiff therein has stated that she is the purchaser of the property

under a Sale Deed dated 10-11-1989, as such, as on the date of

evidence itself, the plaintiff therein (defendant No.1 herein) who was

the defendant No.5 in that suit was aware of the previous Sale Deed in

favour of the defendant No.1 herein.

20. The said argument of the learned counsel for the defendant

No.1 (appellant) is also not acceptable for the reason that admittedly,

the said evidence of PW-1 in O.S.No.6482/2014 was given before the

Court on 27-03-2008 i.e. it was only in March 2008. The plaintiff

therein gave evidence about the existence of a Sale Deed of the year

1989 in her favour. Even according to the plaintiff therein, the suit

schedule property of the plaintiff therein (defendant No.1 in the Trial

Court/appellant herein) was a different property than of the present

plaintiff in the present suit is claiming. The entire O.S.No.6482/2004

proceeded without proper identification of the disputed property and

both the plaintiff and the defendant No.5 describing their property in a

different manner. It is in the judgment passed in O.S.No.6482/2004,

the Court at the end of paragraph 16 of its judgment has held that in

its view there is no doubt that both the plaintiff and the defendant

No.5 are claiming right in respect of the same property. It is

thereafter the defendant No.5 therein who is the plaintiff herein

challenged the said judgment and decree which was against her by

preferring an appeal before this Court in R.F.A.No.287/2009 which

came to be dismissed on Dt.31-01-2013 however with an observation

that, if the defendant No.5 (plaintiff herein) has filed separate suit for

declaration, she can workout her title in that suit and also seek an

injunction, restraining the plaintiff from alienating the suit schedule

property. Therefore, till such finding was given by the Court in its

judgment in O.S.No.6482/2004, neither the present plaintiff nor the

present defendant No.1 were sure of the exact identification of their

property and had not realised that with respect to the very same

property, both of them were fighting for. As such, the cause of action

for the present plaintiff to challenge the alleged Sale Deed in favour of

the defendant No.1 which is said to be of the year 1989 has accrued to

her only on and after Dt. 17-12-2008 when the judgment in

O.S.No.6482/2004 was passed. The present suit since has been filed

within three years' period from the said date, the same is within the

period of limitation, as such, the argument of the learned counsel for

the defendant No.1 (appellant herein) that the suit is barred by

limitation, is not acceptable.

21. Learned counsel for the defendant No.1 (appellant) also

contended that the suit of the plaintiff in the Trial Court was hit by the

principle of res judicata, more particularly, under Explanation-IV to

Section 11 of the Code of Civil Procedure, 1908. The learned counsel

for the appellant submitted that the plaintiff herein who was the

defendant No.5 therein though could have taken all the defences

available to her and could have filed a counter claim seeking

declaration of the Sale Deed in favour of the present defendant No.1,

as void and not binding upon her and also declaration of her title,

however, since has not filed any counter claim but suffered a

decree in O.S.No.6482/2004, the suit is barred by principle of

constructive res judicata.

22. Explanation 4 to Section 11 of the CPC reads as below:

" 11. Res Judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I......

Explanation II.....

Explanation III....

Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V....

Explanation VI...

Explanation VII...

Explanation VIII....."

23. The learned counsel for the appellant in support of her

argument on the constructive res judicata has relied upon the

following judgments :

In Annaimuthu Thevar (Dead) By LRS. -Vs- Alagammal and

Others, reported in (2005) 6 Supreme Court Cases 202, the Hon'ble

Apex Court with reference to Section 11 of CPC has referred in

Paragraph-34 of its judgment its earlier judgment in Sulochana Amma

-vs Narayanan Nair, reported in 1994 (2) SCC 14, wherein it had

observed as below :

"xxx xxx xxx It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata".

24. In Ramadhar Shrivas -Vs- Bhagwandas reported in (2005)

13 SCC 1, with respect to Section 11 of CPC, the Hon'ble Apex Court in

Paragraph 21 of its judgment was pleased to observe as below :

" xxx xxx xxx The expression "matter in issue" under Section 11 of the Code of Civil Procedure, 1908 connotes the matter

directly and substantially in issue actually or constructively. A matter is actually in issue when it is in issue directly and substantially and a competent court decides it on merits. A matter is constructively in issue when it "might and ought" to have been made a ground of defence or attack in the former suit. Explanation IV to Section 11 of the Code by a deeming provision lays down that any matter which "might and ought" to have been made a ground of defence or attack in the former suit, but which has not been made a ground of defence or attack, shall be deemed to have been a matter directly and substantially in issue in such suit ".

25. In P.K.Vijayan -vs- Kamalakshmi Amma and others reported

in (1994) 4 SCC 53, in Paragraph 10 of its judgment, the Hon'ble Apex

Court was pleased to observe that Explanation IV to Section 11 of Civil

Procedure Code, 1908, postulates that any matter which might and

ought to have been made a ground of defence or attack in a former

suit shall be deemed to have been a matter directly and substantially

in issue in such suit; and no Court shall try any such suit or issue in

which the matter directly and substantially in issue in former suit

between the same parties or between the parties under whom they or

any of them claim, litigating under the same title, in a Court

competent to try such subsequent suit or the suit in which such issue

has been subsequently raised and has been heard and finally decided

by such Court.

26. In Dadu Dayalu Mahasabha, Jaipur (Trust) -vs- Mahant Ram

Niwas and another, reported in (2008) 11 SCC 753, with respect to

constructive res judicata, the Hon'ble Apex Court in Paragraph 25 of its

judgment was pleased to observe that, Explanation IV of Section 11

of Code extends the principles of res judicata stating that the reliefs

which could have been or ought to have been prayed for even if it was

not prayed for would operate as res judicata. Section 12 thereof bars

filing of such suit at the instance of a person who is found to be

otherwise bound by the decision in the earlier round of litigation and in

a case where the principle of res judicata shall apply.

27. In Asgar and others -vs- Mohan Varma and others reported

in (2020) 16 SCC 230, with respect to principle of constructive

res judicata under Section 11 of CPC, the Hon'ble Apex Court in

Paragraph 37 of its judgment was pleased to observed as below :

"37. We are not inclined to decide this question on a priori consideration, for the simple reason that under CPC , both res judicata (in the substantive part of Section

11) and constructive res judicata (in Explanation IV) are embodied as statutory principles of the law governing civil procedure. The fundamental policy of the law is that there

must be finality to litigation. Multiplicity of litigation enures to the benefit, unfortunately for the decree-holder, of those who seek to delay the fruits of a decree reaching those to whom the decree is meant. Constructive res judicata, in the same manner as the principles underlying res judicata, is intended to ensure that ground of attack or defence in litigation must be taken in one of the same proceeding. A party which avoids doing so does it at its own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure of raise it in that proceeding would debar the party from agitating it in the future."

28. In Shiv Chander More and others -vs- Lieutenant

Governor and others, reported in (2014) 11 SCC 744, the

Hon'ble Apex Court was pleased to observe that principles of

constructive res judicata applies not only to what is actually

adjudicated or determined in a case, but, to every other manner

in which the parties might and ought to have litigated or which

was incidental or essentially connected with the subject matter

of litigation.

29. In Yajaman Gowraiah, since deceased by his LRs. -vs-

N.V.S.Shivaram, since deceased by his LRs. and others,

reported in ILR 2009 KAR 2105, a Coordinate Bench of this

court after referring to several of the judgments of Hon'ble Apex

Court, including the one in Sulochana Amma's case (supra), was

pleased to observe at Paragraph 21 of its judgment as below :

" 21. Thus, from the aforesaid decision, it is clear that the finding on issue in a previous proceedings would act as res judicata and as an estoppel in a subsequent proceedings. Merely because, the earlier suit was for the relief of permanent injunction alone, the finding recorded in the said proceedings cannot be held to be not binding on the parties in the subsequent suit for declaration of title."

30. In T.V.Ramakrishna Reddy -vs- M.Mallappa and another,

reported in 2021 SCC Online SC 674, where the question involved was

maintainability of a suit simplicitor for permanent injunction without

claiming the declaration of title, the Hon'ble Apex Court after referred

to its previous judgment in Anathula Sudhakar -vs- P.Buchi Reddy

(dead) by L.Rs. reported in (2008) 4 SCC 594, was pleased to extract

Para-21 (b) of the judgment, which reads as below :

" 21 (b)- As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

31. In Union of India -Vs- Vijay Krishna Uniyal (Dead) through

Legal Representatives, reported in (2018) 11 SCC 382, the Hon'ble

Apex Court while deciding as to whether a suit for permanent

injunction against dispossession bars filing of a subsequent suit for

declaration of title, qua the same immovable property and on the

principles of doctrine of constructive res judicata and its applicability,

by referring to its previous judgment in Anathula Sudhakar -vs-

P.Buchi Reddy, reported in (2008) 4 SCC 594, and also considering

its judgment in Sajjadanashin Sayed -vs- Musa Dadabhai Ummer,

reported in (2000) 3 SCC 350, was pleased to observe that the facts

and circumstances of the case before it has shown that the impugned

judgment was hit by the principles of constructive res judicata.

It is submitted that the finding of the Hon'ble Apex Court in the above

case was considering the facts and circumstances of the case before it.

32. The learned counsel for respondent No.1 also in his support

on the point of constructive res judicata relied upon the judgment of

Hon'ble Apex Court in Alka Gupta -vs- Narender Kumar Gupta,

reported in (2010) 10 SCC 141, with respect to Order II Rule 2 and

Section 11 Explanations III and IV of CPC, was pleased to observe in

Paragraph 23 of its judgment as below :

" xxx xxx xxx

The principle of constructive res judicata emerges from Explanation IV when read with Explanation III both of which explain the concept of "matter directly and substantially in issue."

24. Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or implied) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if it was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which

ought to have been raised, but not raised, whereas Order 2 Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed".

33. It is in the light of the principles laid down in the above

judgments when the case on hand is perused, it can be observed that,

admittedly O.S.No.6482/2004 was filed by the present defendant

No.1, as the plaintiff against the defendants therein, among whom the

present plaintiff was defendant No.5 therein. The suit was one for the

relief of permanent injunction. As already observed above, till the Trial

Court expressed its view in its judgment in the said suit, both the

plaintiff and defendants were proceeding in the said suit with the

different description of the property which they claim to be the owners

of the property. It is only in the judgment in O.S.No.6482/2004, the

Court clarified that both the parties are agitating with respect to the

same property. However, the defendant No.5 when has claimed her

ownership over the property under a registered Sale Deed, the plaintiff

in the said suit should have sought for the relief of declaration instead

of a bare injunction. That, the plaintiff in the said suit did not do. On

the other hand, the defendant No.5 therein (plaintiff herein) has met

only the plaint averment in O.S.No.6482/2004 in her Written

Statement. When the plaintiff therein was describing the property

with a different description, it was not expected of defendant No.5

therein to file any counter claim. Even though Explanation IV to

Section 11 of the CPC says that any matter which might and ought to

have been made grounds of defence or attack in such former suit

shall be deemed to have been a matter directly and substantially in

issue in such suit but the plaint averment since was giving different

description of the suit schedule property with the averments confining

it to the alleged interference by the defendant therein, the matter

which was in issue before the said Court was totally different from the

matter and issues involved in the present suit. As such it cannot be

said that the declaration of title of the present plaintiff with respect to

the suit schedule property was a matter which might and ought to

have been made ground of defence or attack in O.S.No.6482/2004, as

such, the argument of the learned counsel for the defendant

No.1/appellant herein on this aspect also, is not acceptable.

34. In so far as the plaintiff's alleged title over the suit schedule

property and her right to claim possession of the suit schedule

property from the defendant No.1 is concerned, PW-1 in his evidence

has stated that the land measuring 1 acre 4 guntas was originally

allotted to one late Sri Sampangi Reddy by the Land Tribunal in LRF

4188/1976, in Survey No.5/B of Dodda Banaswadi, K.R.Puram Hobli,

Bengaluru South Taluk, in which regard, a certified copy of the order

sheet of the Land Tribunal was produced and marked by her at Ex.P-2.

The said document was not seriously disputed from the defendants'

side since the defendant No.1 also does not dispute that her alleged

property also said to have purchased by her through the legal

representatives of the very same late Sri Sampangi Reddy.

PW-1 has further stated that the said granted land should not

have been alienated before the expiry of fifteen (15) years from the

date of the grant. Thus, as per the grant order, the fifteen years term

expires on 10.05.1996. Any violation of the same would be hit by Rule

108 J of the Karnataka Land Revenue Rules. He has further stated

that the original grantee Sri Sampangi Reddy died only on 10.05.1990

and his wife Smt.Muniyamma died on the date 10.01.2009. Therefore,

during the lifetime of late Sri Sampangi Reddy, who had not conferred

any right to his legal heirs either orally or in writing, his legal heirs,

who are said to be the vendors of the property to defendant No.1,

could not have executed a Sale Deed in favour of defendant No.1 on

the date 10.11.1989. Further, it is also a violation of prohibition for

sale of granted land for fifteen years.

PW-1 has also produced a certified copy of the Sale Deed dated

10.11.1989 at Ex.P-11. The said document would go to show that

Smt.Muniyamma, wife of late Sri Sampangi Reddy, Sri Muni Reddy, Sri

Venkatesh Reddy, Sri Annaya Reddy, Sri Babu Reddy and Sri Sathish

Reddy, claiming to be the legal heirs of late Sri Sampangi Reddy as the

wife and children of said Sampangi Reddy, are shown to have

executed a registered Sale Deed in favour of defendant No.1 with

respect to the scheduled property. A recital of the said Sale Deed go

to show that the vendors have claimed that they are the widow and

sons of late Sampangi Reddy and have inherited the property from

him. Which means, representing that the original grantee Sri

Sampangi Reddy has died as on the date of execution of the Sale

Deed, which is dated 10.11.1989, the said registered Sale Deed has

been executed in favour of defendant No.1. Even though the

defendant No.1 has not produced the original Sale Deed from her end,

however, has not denied that her title flows from the Sale Deed at

Ex.P-11.

In the cross-examination of PW-1, it was suggested to the

witness that his statement that Sri Sampangi Reddy died on the date

10.05.1990 was false, however, the witness has not admitted the said

suggestion as true. On the other hand, PW-1 has produced the Death

Certificate and got it marked at Ex.P-10. The said document, which is

a public document issued by the competent authority, go to show that

the death of Sri Sampangi Reddy has been registered showing that he

died on the date 10.05.1990. Therefore, it is clear that the Sale

Deed said to have been executed by the alleged legal representatives

of Sri Sampangi Reddy showing that they have inherited the property

and that said Sri Sampangi Reddy was no more as on 10.11.1989, was

not true. On the other hand, it is established that, on the date

10.11.1989, said Sri Sampangi Reddy was still alive. As such, in the

absence of any power to the alleged vendors in Ex.P-11, they have no

right to sell or convey the suit schedule property as mentioned in

Ex.P-11 to defendant No.1 as on the date 10.11.1989.

35. Learned counsel for the appellant in her argument

submitted that, if it is taken that the sale in favour of defendant No.1

of the suit schedule property was made within the prohibited period of

fifteen years from the date of grant, then, the land would revert to the

State, as such, plaintiff also would not get any title over the property.

The said argument of the learned counsel for the appellant is not

acceptable, for the reason that, even according to defendant No.1, the

vendor of the property to her is not the original grantee i.e., Sri

Sampangi Reddy, but, it is six other persons claiming themselves to be

the wife and sons of late Sri Sampangi Reddy. Further, the defendant

No.1 though got herself examined as DW-1, could not produce any

evidence either oral or documentary to show that the vendors of the

property to her under Ex.P-11 had any authority, including a Power of

Attorney to sell the suit schedule property to her. Therefore, in the

absence of there being any oral or documentary authority for the

vendors in Ex.P-11 to sell the suit schedule property to the defendant

No.1, no conveyance of immovable property could have been made by

those vendors in favour of defendant No.1 when the original grantee

Sri Sampangi Reddy was still alive.

36. The plaintiff to show that she has acquired the property

under a registered Sale deed, has produced the original registered

Sale deed at Ex.P-3, which go to show that the said sale deed has

been executed by Smt. Muniyamma, Sri S. Sathish, Sri A. Raja and Sri

M. Manjunath, claiming themselves to be the wife and sons of late Sri

Sampangi Reddy, who have conveyed the suit property to the plaintiff

for valuable consideration under registered document. Interestingly,

the vendor Smt. Muniyamma and Sri S. Sathish are also shown to be

the vendors in Ex.P-11 in the alleged earlier sale deed in favour of

defendant No.1. The other two vendors in Ex.P-3 by name Sri A.Raja

and Sri M. Manjunath are not the vendors in Ex.P-11 which is in favour

of defendant No.1.

Similarly, Smt. Muniyamma, Sri Muni Reddy, Sri Venkatesh

Reddy, Sri Annaya Reddy and Sri Babu Reddy who are shown to be the

other vendors in Ex.P-11 are not shown as vendors in Ex.P-3. In that

connection, the plaintiff has produced family Genealogy Certificate and

got it marked as Ex.P-19. The said Genealogy certificate which is

shown to have been issued by the Village Accountant, Banaswadi,

K.R.Puram Hobli, shows that Smt. Muniyamma is the wife of Sri

Sampangi Reddy and the said couple had three sons by name Sathish,

Raja and Manjunath. It is those three sons along with Smt.

Muniyamma have executed the Sale deed in favour of the plaintiff

which is at Ex.P-3. The said family genealogical tree nowhere

mentions about the other vendors whose names are shown in Ex.P-11.

Though in the cross-examination of PW-1, said family genealogical tree

was denied, however, except making a denial suggestion, the

defendants have not placed any material to suspect Ex.P-19, which is

shown to have been issued by a proper authority and possess no

element of suspicion in it. Therefore, there is no reason to disbelieve

Ex.P-3 and Ex.P-19, on the other hand, there are every reason to

suspect Ex.P-11.

37. The learned counsel for the appellant also contended that

the plaint schedule property and the defendants' property are

different, as such also, suit of the plaintiff ought not to have been

decreed. She contended that the names of the layout mentioned in

the two Sale deeds in Ex.P-3 and Ex.P-11 are different.

The said argument is not acceptable for the reason that, the

defendant No.1 has not disputed that the alleged vendors to her, have

claimed their inheritance against the property of Sri Sampangi Reddy.

According to the plaintiff, the layout alleged to have been formed in

the granted land was named as "Sampangi Layout", whereas,

according to defendant No.1, the said layout was named as

"Muniyamma Layout". It is the names of the original grantee and his

wife respectively. It is pertinent to note that the Civil Court in

O.S.No.6482/2004 in its judgment, the certified copy of which is at

Ex.D-24, after trial, has arrived at a finding that, though the plaintiff

before it (the appellant herein/defendant No.1) and the defendant

No.5 before it (the plaintiff) have contended that the suit schedule

properties are different, however, after detailed reasoning, it has

arrived at a finding that both the properties are one and the same, as

such, there is no dispute regarding the identity of the property. The

said finding has not been disputed by the parties.

38. In addition to the above, it is not in dispute that the plaintiff

after purchasing the property under Ex.P-3, when applied for making

khatha in her name, the present defendant No.1 objected to the same,

in which regard, the BBMP has issued an endorsement to the plaintiff

as per Ex.P-8, stating that the present defendant No.1 has raised an

objection for making khatha in the name of the plaintiff with respect to

the suit property. It is thereafter, the plaintiff has written to the BBMP

as per her letter at Ex.P9 requesting to know as to what the objection

raised by the defendant No.1 was. From this, it can be inferred that,

had the properties as contended by the plaintiff and the defendant

No.1 were not the same, the defendant No.1 would not have raised an

objection for making khatha in favour of the plaintiff. It is only

knowing that both the properties are the same, the defendant No.1

had raised her objection for making khatha in favour of the plaintiff.

Further, as can be noticed, in the cross-examination of PW-1, a

suggestion was made to the witness from the defendant No.1 side,

suggesting that the subject matter of the suit and subject matter of

O.S. No. 6482/2004 are one and the same, the witness has admitted

the said suggestion as true. Thus, the defendant No.1 by herself

making the suggestion to the plaintiff that both the properties are one

and the same, now cannot contend that the properties under Ex.P-3

and Ex.P-11 are different properties. Therefore, the argument of

learned counsel for the appellant regarding the identification of the

properties also is not acceptable.

39. On the other hand, the Sale deed standing in the name of

the plaintiff is dated 09.08.2004, which is much after the expiry of

fifteen years from the date of grant of land in favour of Sri Sampangi

Reddy. PW-1 has also produced the encumbrance certificate as Ex.P-4

and power sanction supply document as per Ex.P-5. Though he has

also produced betterment charges payment receipt at Ex.P-6,

however, the fact remains that, in view of the objection raised by the

defendant No.1, the BBMP could not make khatha in favour of the

plaintiff. Thus, even though the plaintiff could able to prove her better

title upon the suit property, compared to the title of defendant No.1

upon it, the possession of the property remains with defendant No.1 as

could be seen from the evidence of DW-1, as well, the tax paid

receipts produced by defendants from Ex.D-4 to Ex.D-23. Further,

acknowledging her possession over the suit property, the present

plaintiff was restrained from interfering in the peaceful possession of

the property by the competent Court, by passing the decree in favour

of the present defendant No.1, who was the plaintiff in

O.S.No.6482/2004, as could be seen from the certified copy of the

judgment and decree which are at Ex.D-24 and Ex.D-25 respectively.

However, since now it is established that the plaintiff herein has

proved her title over the property, she is entitled for possession of the

suit property from the defendant. It is considering these aspects, the

trial Court has decreed the suit of the plaintiff, in which finding, I do

not find any reasons to interfere in it.

40. Accordingly, I proceed to pass the following order:

ORDER

The Regular First Appeal is dismissed as devoid of merits.

Registry to transmit a copy of this judgment along with records

to the concerned trial Court without delay.

SD/-

JUDGE

bk/BMV